The Misuse of Drugs Act 2001 defines controlled substances and trafficable quantities, creates criminal offences for manufacture, possession, supply and trafficking with graduated penalties, and grants police search, seizure and limited warrantless powers. It also allows the Commissioner of Police to authorise narrow operational possession/supply (dog training, sample transport) subject to recordkeeping and Ombudsman review.
It affects individuals and businesses handling listed substances, police and correctional officers, and matters because evidential presumptions and quantity thresholds shift litigation burdens and concentrate operational discretion.
This Act defines criminal offences, penalties and enforcement powers in relation to controlled drugs, controlled plants and controlled precursors, and establishes regulatory and administrative mechanisms for handling, seizure, disposal and authorised possession and supply. It classifies offences into major (indictable) offences in Part 2 and minor (summary) offences in Part 3 (see s5 and s18). The schedules list controlled drugs, controlled plants and controlled precursors, and set out trafficable quantities used for presumptions and enhanced offences (see Schedule 1 Parts 2-4; s3A).
Mechanically, the Act:
Creates high‑penalty indictable offences for manufacture, cultivation, trafficking and related conduct carrying maximum terms up to 21 years (for example, manufacture or trafficking for sale, ss6-7,12; ss13-14 carry the same maximum term).
Establishes a parallel set of summary offences with lower maximum penalties (fines/shorter imprisonment) for manufacturing, cultivating, possession, use, supply and trafficking, and a 2‑year time limit to commence proceedings for summary offences (see Part 3 Division 1 and s19).
Fixes legal presumptions based on "trafficable quantity" and "aggregated trafficable quantity" (s3A), and provides specific presumptions that the accused had an intention or belief to sell where a trafficable quantity is proved (see ss6(2),7(2),12(2),27AA(2)).
Gives police broad warrantless search, seizure and detention powers where the officer has a "prescribed belief" (s29), and special powers for personal and body cavity searches (s30).
Establishes forfeiture and Crown ownership of seized controlled substances and prescription forms (s37), and a separate mechanism to deal with evidentiary material that is impracticable or unsafe to hold (s37A), including sample preservation and consultation requirements.
Current sections
Direct links to the current provisions in Misuse of Drugs Act 2001.
(2) For the purposes of this Act, a person is taken to engage in an activity if the person –
(a) participates in the activity; or
(b) controls or directs the activity; or
(c) provides finance or another resource that allows the activity to be carried on.
(3) Without restricting the generality of the expression "possession", a controlled substance is taken to be in a person's possession for the purposes of this Act so long as it is on any land or premises occupied by the person, or is enjoyed by the person in any place or is in the person's order and disposition, unless the person proves that he or she had no knowledge of the substance.
3A
Meaning of "trafficable quantity" and determining "aggregated trafficable quantity"
3A Meaning of "trafficable quantity" and determining "aggregated trafficable quantity"
trafficable quantity, of a controlled substance, means –
(a) in the case of a controlled drug that is not mixed with or contained in any other substance, a quantity of the controlled drug that is not less than the quantity specified in column 3 of the table in Part 2 of Schedule 1 in relation to the controlled drug; and
(b) in the case of a controlled drug that is mixed with or contained in another substance where the combined quantity of the substances is not less than the quantity specified in column 3 of the table in Part 2 of Schedule 1 in relation to the controlled drug, any quantity; and
(c) in the case of a controlled plant, a quantity of the controlled plant that is not less than the quantity specified in column 3 of the table in Part 3 of Schedule 1 in relation to the controlled plant; and
(d) in the case of a controlled precursor, a quantity of the controlled precursor that is not less than the quantity specified in column 3 of the table in Part 4 of Schedule 1 in relation to the controlled precursor; and
(e) in the case of 2 or more controlled substances together, an aggregated trafficable quantity of the controlled substances.
(2) To determine, for the purpose of this Act, whether a quantity of 2 or more controlled substances together constitutes an aggregated trafficable quantity –
(a) the quantity of each of the controlled substances is to be calculated as a fraction of the trafficable quantity of that controlled substance; and
(b) the fractions calculated under paragraph (a) are to be added together; and
(c) the quantity is to be taken to constitute an aggregated trafficable quantity if the total of those fractions so added together is equal to or greater than the number "1".
The offences in this Part are indictable offences.
Division 2
Manufacturing and cultivation
Division 2 Manufacturing and cultivation
6
Manufacturing controlled drug for sale
6 Manufacturing controlled drug for sale
(1) A person must not manufacture a controlled drug –
(a) with the intention of selling the controlled drug; or
(b) in the belief that another person intends to sell the controlled drug.
Penalty: Imprisonment for a term not exceeding 21 years.
(2) [Section 6 Subsection (2) amended by No. 9 of 2004, s. 4, Applied:27 May 2004] If it is proved in proceedings for an offence under subsection (1) that the accused manufactured a trafficable quantity of a controlled drug, it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the manufactured drug required to constitute the offence.
(1) A person must not cultivate a controlled plant –
(a) with the intention of selling the controlled plant or any of its products; or
(b) in the belief that another person intends to sell the controlled plant or any of its products.
Penalty: Imprisonment for a term not exceeding 21 years.
(2) [Section 7 Subsection (2) amended by No. 9 of 2004, s. 5, Applied:27 May 2004] If it is proved in proceedings for an offence under subsection (1) that the accused cultivated a trafficable quantity of a controlled plant, it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled plant or its products required to constitute the offence.
Possessing thing intended for use in manufacture of controlled substance for sale
8 Possessing thing intended for use in manufacture of controlled substance for sale
A person must not possess any equipment, instruction or other thing –
(a) with the intention of using it to manufacture and sell a controlled substance; or
(b) with the intention of using it to manufacture a controlled substance in the belief that another person intends to sell the controlled substance.
Penalty: Imprisonment for a term not exceeding 21 years.
9
Possessing thing intended for use in cultivation of controlled plant for sale
9 Possessing thing intended for use in cultivation of controlled plant for sale
A person must not possess any equipment, instruction or other thing with the intention of using it to –
(a) cultivate and sell a controlled plant; or
(b) cultivate a controlled plant in the belief that another person intends to sell the controlled plant.
Penalty: Imprisonment for a term not exceeding 21 years.
10
Manufacturing controlled precursor intended for use in manufacture of controlled drugs for sale
10 Manufacturing controlled precursor intended for use in manufacture of controlled drugs for sale
(1) A person must not manufacture a controlled precursor –
(a) with the intention of manufacturing and selling a controlled drug; or
(b) with the intention of manufacturing a controlled drug in the belief that another person intends to sell the controlled drug.
Penalty: Imprisonment for a term not exceeding 21 years.
(2) A person must not manufacture a controlled precursor –
(a) with the intention of selling the controlled precursor; and
(b) in the belief that the person to whom the controlled precursor is sold intends to use it to manufacture a controlled drug.
Penalty: Imprisonment for a term not exceeding 21 years.
11
Selling controlled precursor for use in manufacturing controlled drug
11 Selling controlled precursor for use in manufacturing controlled drug
A person must not sell a controlled precursor in the belief that the person to whom the controlled precursor is sold, or another person, intends to use it to manufacture a controlled drug.
Penalty: Imprisonment for a term not exceeding 21 years.
Division 3
Trafficking and supply
Division 3 Trafficking and supply
12
Trafficking in controlled substance
12 Trafficking in controlled substance
(1) A person must not traffic in a controlled substance.
Penalty: Imprisonment for a term not exceeding 21 years.
it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled substance required to constitute the offence.
Procuring child to traffic in controlled substance
13 Procuring child to traffic in controlled substance
(1) A person must not procure a child to traffic in a controlled substance.
Penalty: Imprisonment for a term not exceeding 21 years.
(2) For the purposes of this section, a person is taken to have procured a child to traffic in a controlled substance if the person –
(a) procures the child to sell the controlled substance; or
(b) with the intention of selling the controlled substance or in the belief that another person intends to sell it, procures the child to prepare the controlled substance for supply or to transport the controlled substance.
14
Supplying controlled drug to child
14 Supplying controlled drug to child
A person must not supply a controlled drug to a child.
Penalty: Imprisonment for a term not exceeding 21 years.
Division 4
Property derived from major offences
Division 4 Property derived from major offences
15
Interpretation of Division
15 Interpretation of Division
(1) In this Division –
drug offence means an offence under Division 2 or 3 of this Part;
proceeds, in relation to a drug offence, includes –
(a) the proceeds of any sale involved in committing the offence; and
(b) any remuneration or other reward for committing the offence;
property means real or personal property, including things in action and other intangible property;
property derived from a drug offence does not include a controlled drug, controlled plant or controlled precursor.
(2) For the purposes of this Division –
(a) property is taken to be directly derived from a drug offence if it is –
(i) all or part of the proceeds of the offence; or
(ii) wholly or partly acquired by disposing of, or using, the proceeds of the offence; and
(b) property is taken to be indirectly derived from a drug offence if it is wholly or partly acquired by disposing of, or using –
(i) property directly derived from the offence; or
(ii) property indirectly derived from the offence, including any property indirectly derived by virtue of the previous operation of subparagraph (i) ; and
(c) property that has been directly or indirectly derived from a drug offence does not lose that status merely by being deposited with an authorised deposit-taking institution or elsewhere for credit to an account or for investment.
16
Concealing, &c., property derived from drug offence
16 Concealing, &c., property derived from drug offence
A person who knows that any property is directly or indirectly derived from a drug offence must not –
(a) conceal the property; or
(b) transfer the property; or
(c) convert the property; or
(d) remove the property from Tasmania –
with the intention of evading or helping another person evade –
(e) prosecution for a drug offence; or
(f) the imposition or enforcement of a pecuniary penalty for a drug offence; or
(g) the making or enforcement of an order for the confiscation or forfeiture of the property or any part of it.
Penalty: Imprisonment for a term not exceeding 21 years.
17
Receiving property directly derived from drug offence
17 Receiving property directly derived from drug offence
(1) A person must not receive any property if the person –
(a) has no legal entitlement to the property; and
(b) knows that the property is directly derived from a drug offence committed by another person.
Penalty: Imprisonment for a term not exceeding 21 years.
(2) For the purposes of this section, property to which a person is legally entitled extends to property that is received by way of testamentary disposition, as reasonable payment for the supply of goods or services or in repayment of a lawful debt but does not extend to property received wholly or partly by way of gift.
Part 3
Minor offences
Part 3 Minor offences
18
Offences in this Part are summary offences
18 Offences in this Part are summary offences
The offences in this Part are summary offences.
19
Time for instituting proceedings
19 Time for instituting proceedings
(1) A prosecution for an offence under this Part may be instituted at any time within 2 years after the commission of the offence.
(1) A person must not cultivate a controlled plant –
(a) with the intention of selling the controlled plant or any of its products; or
(b) in the belief that another person intends to sell the controlled plant or any of its products.
Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years.
(2) If it is proved in proceedings for an offence under subsection (1) that the accused cultivated a trafficable quantity of a controlled plant, it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled plant or its products required to constitute the offence.
23
Possessing thing used for administration of controlled drug
23 Possessing thing used for administration of controlled drug
A person must not possess a utensil, appliance or other thing that is –
(a) used or designed to be used in connection with the preparation, smoking, inhalation, administration or taking of a controlled drug or controlled plant; or
(b) apparently intended, after some adjustment, addition or other modification, to be used in connection with the preparation, smoking, inhalation, administration or taking of a controlled drug or controlled plant.
Penalty: Fine not exceeding 50 penalty units.
24
Possessing, using or administering controlled drug
24 Possessing, using or administering controlled drug
A person must not –
(a) possess a controlled drug; or
(b) use a controlled drug; or
(c) administer a controlled drug to another person.
Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.
25
Possessing or using controlled plant or its products
25 Possessing or using controlled plant or its products
A person must not possess or use –
(a) a controlled plant; or
(b) a controlled plant product.
Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.
26
Selling or supplying controlled drug
26 Selling or supplying controlled drug
A person must not sell or supply a controlled drug to another person.
Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years.
27
Selling or supplying controlled plant or its products
27 Selling or supplying controlled plant or its products
A person must not sell or supply to another person –
(a) a controlled plant; or
(b) a controlled plant product.
Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years.
(1) A person must not traffic in a controlled substance.
Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 4 years.
(2) If it is proved in proceedings for an offence under subsection (1) that the accused –
(a) prepared a trafficable quantity of a controlled substance for supply; or
(b) transported a trafficable quantity of a controlled substance; or
(c) guarded or concealed a trafficable quantity of a controlled substance; or
(d) possessed a trafficable quantity of a controlled substance; or
(e) imported a trafficable quantity of a controlled substance into Tasmania –
it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled substance required to constitute the offence.
(b) a form that a health professional has privately prepared or caused to be prepared for the purpose of writing a prescription, being a form that identifies, and purports to be a prescription form of, that health professional;
conduct includes the making of an oral or written representation;
(b) a person registered under the Health Practitioner Regulation National Law (Tasmania) in the dental profession as a dentist; and
(c) a person registered under the Health Practitioner Regulation National Law (Tasmania) in the nursing profession who is endorsed by the Nursing and Midwifery Board of Australia to practise as a nurse practitioner; and
(d) a person who may lawfully practise as a veterinary surgeon, whether in this State or in a Territory or another State.
prescription means a prescription of a health professional, for the supply of a substance comprising or consisting of a controlled drug or controlled precursor;
unlawfully altered, in relation to a prescription, means altered by a person other than the health professional who issued it.
(2) A person must not –
(a) forge a prescription; or
(b) possess a prescription knowing it to have been forged or unlawfully altered; or
(c) utter a prescription knowing it to have been forged or unlawfully altered.
Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.
(3) A person must not unlawfully alter a prescription.
Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.
(4) A person must not obtain a prescription by means of conduct that the person knows to be false, misleading or deceptive.
Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.
(5) A person must not, without lawful excuse, possess a blank prescription form.
Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years.
Part 4
Enforcement
Part 4 Enforcement
29
Power to seize controlled substances, &c.
29 Power to seize controlled substances, &c.
(1) In this section,
prescribed belief means a reasonable belief that a controlled substance or other thing in relation to which an offence under this Act has been committed is –
(2) A police officer who has a prescribed belief may, without warrant and with such assistance as the police officer reasonably considers necessary, take such one or more of the following actions as may be applicable in the circumstances:
(a) search the relevant person and detain that person for the purpose of carrying out the search;
(b) search the relevant conveyance or animal and detain it for the purpose of carrying out the search;
(c) seize the relevant conveyance or animal;
(d) seize anything that may be evidence of an offence under this Act.
(3) The police officer, and any person assisting the police officer, may use such force as is necessary and reasonable in the circumstances.
(4) A police officer who searches or is empowered to search a person pursuant to subsection (2) or any other Act may arrest the person without warrant if the police officer reasonably believes that the person has committed an offence under this Act.
(5) In this section, a reference to a search of a person includes a reference to any clothing worn by the person and anything that may be in the person's possession.
30
Power to conduct personal searches
30 Power to conduct personal searches
(1) In this section –
body cavity means rectum or vagina;
strip search means a search, other than a body cavity search ordered by a magistrate under this section, in which the person searched is required to remove most or all of his or her clothes.
(a) if the person is female and it is proposed to conduct a strip search, a female police officer is to conduct it;
(b) if the person is male and it is proposed to conduct a strip search, a male police officer is to conduct it;
(c) if the search involves the application of force to the person, the police officer must give the Commissioner of Police a written report about the search within 7 days, including particulars of the circumstances that gave rise to the application of force;
(d) if the police officer reasonably suspects that a controlled substance may be present in one or more of the person's body cavities and wishes to determine whether or not that is the case, the police officer must cause the person to be brought before a magistrate;
(e) the magistrate before whom the person is brought may make an order that the person's body cavity or cavities specified in the order may be searched by a medical practitioner.
(3) The magistrate's order, if made, is sufficient authority for a medical practitioner to search the person's body cavity or cavities specified in the order.
(a) the person is first to be told that he or she may ask for the search to be conducted by a medical practitioner of the same sex as that person; and
(b) if the person does so ask, the search is not to be conducted except by a medical practitioner of that sex unless it is not reasonably practicable in the circumstances for such a medical practitioner to be present.
(5) The magistrate's order also authorises –
(a) a medical practitioner who is to conduct the search to ask another person to help with the search; and
(b) the other person to give that help.
(6) Unless it is not reasonably practicable in the circumstances, the person asked to help is to be of the same sex as the person to be searched.
(7) If the person subject to the magistrate's order refuses or fails to submit to the search, the medical practitioner and the helper, if any, may use reasonable force to enable the search to be conducted.
31
Power to require information
31 Power to require information
(1) A police officer who seizes a controlled substance or other thing under a search warrant or section 29 may require the person from whom the controlled substance or thing was seized to state –
(a) the person's name and the address of the person's place of residence or of the place where the person proposes next to reside; and
(b) the place at which, and the person from whom, the first-mentioned person obtained the controlled substance or thing.
(2) A person must not –
(a) fail to comply with a requirement made under subsection (1) in relation to the particulars referred to in paragraph (a) of that subsection; or
(b) without reasonable excuse, fail to comply with a requirement made under subsection (1) in relation to the particulars referred to in paragraph (b) of that subsection when it is within the person's power so to comply; or
(c) in response to a requirement made under subsection (1) , give information that the person knows to be false or misleading.
Penalty: Fine not exceeding 10 penalty units.
(3) A police officer who searches or is empowered to search a person under a search warrant or section 29 may arrest the person without warrant if –
(a) the person fails to comply with a requirement made under subsection (1) ; or
(b) in response to such a requirement, the person gives information that the police officer reasonably believes to be false or misleading.
32
Power to pursue suspect onto private property
32 Power to pursue suspect onto private property
Where –
(a) a police officer reasonably believes that a person has committed an offence under this Act; and
(b) the person flees from the police officer's presence while the police officer, or another police officer, is trying to arrest the person or exercise another power under this Act in relation to the person; and
(c) the police officer, or another police officer, immediately pursues the person and the pursuit continues without interruption; and
(d) during the pursuit the person enters a private residence or another place that is not a public place –
the pursuing police officer may, without warrant and using no more force than is reasonably necessary for the purpose, enter the private residence or other place notwithstanding that it is not a public place.
33
Power when executing search warrant
33 Power when executing search warrant
A police officer executing a search warrant in relation to any place may –
(a) arrest without warrant any person found at the place who the police officer reasonably believes has committed an offence under this Act; and
(b) search any person found at the place and detain any such person for that purpose.
34
Prosecution witness need not disclose source of information
34 Prosecution witness need not disclose source of information
A witness for the prosecution in proceedings under this Act is not obliged to disclose –
(a) the fact that the witness received any information; or
(b) the nature of any information received by the witness; or
(c) the name of the person who gave the witness any information.
35
Offences by bodies corporate
35 Offences by bodies corporate
(1) If a body corporate commits an offence under this Act each person concerned in the management of the body corporate is taken also to have committed the offence and may be convicted of the offence unless the person proves that the act or omission constituting the offence took place without the person's knowledge or consent or contrary to the person's orders or directions.
(2) A person referred to in subsection (1) may be convicted of an offence under this Act whether or not the body corporate is charged with or convicted of the offence.
36
Children not liable for conduct constituting certain offences
36 Children not liable for conduct constituting certain offences
A person is not criminally liable for an offence under section 13 or 14 if, at the time of the conduct constituting the offence, the person was a child.
(1) A person who is indicted for but found not guilty of an offence under section 6(1) may be convicted of an offence under section 21 if the evidence in the proceedings on the indictment establishes that the person committed that other offence.
(2) A person who is indicted for but found not guilty of an offence under section 7(1) may be convicted of either or both of the following offences if the evidence in the proceedings on the indictment establishes that the person committed that other offence or, if applicable, those other offences:
(2) Where, for proceedings under this Act, the prosecutor has caused the substance or plant to which the proceedings relate to be analysed or examined by an analyst, the court may, in case of a conviction, assess the reasonable expense of and attending the analysis or examination and award it against the defendant as part of the costs of the prosecutor.
(3) In addition to the costs, if any, under subsection (2) , the court may assess and award against the defendant –
(a) as part of the costs of the prosecutor, the expenses incurred by the prosecutor while engaged in travelling to and attending the trial, including the proportionate part of the prosecutor's salary while so engaged; and
(b) if an analyst has given evidence in the proceedings, such costs in respect of the analyst's attendance as the court may determine.
37
Crown becomes owner of controlled substances, &c., that are seized, surrendered or found
37 Crown becomes owner of controlled substances, &c., that are seized, surrendered or found
evidentiary material means a controlled substance or hazardous chemical that –
(a) has been seized by or otherwise come into the possession of a police officer; and
(b) is or could be relevant to proceedings or prospective proceedings for an offence against this Act;
hazardous chemical means a chemical or other substance that –
(a) is used or capable of being used in connection with the manufacture of a controlled substance; and
(b) is, by reason of its combustibility, volatility, toxicity or some other quality, unsafe or potentially unsafe.
(2) This section applies if the Commissioner of Police is satisfied on reasonable grounds that it is impracticable or unsafe to hold or continue holding any evidentiary material.
(3) The Commissioner of Police may cause the evidentiary material to be –
(a) rendered safe or inert (if necessary by treating, repackaging or breaking up the material); or
(b) destroyed or otherwise disposed of.
(4) However, before any action is taken under subsection (3) , the Commissioner of Police must –
(a) if the evidentiary material is or could be relevant to indictable proceedings or prospective indictable proceedings against this Act, consult the Director of Public Prosecutions; and
(b) ensure that –
(i) 2 or more samples are taken of the evidentiary material; and
(ii) each of those samples is a true representation of the nature of the evidentiary material.
(5) The Commissioner must ensure that the samples so taken are kept securely for as long as they are reasonably likely to be required for evidentiary purposes.
(6) The Minister may –
(a) issue the Commissioner of Police with written guidelines regarding the administration of this section; and
(b) amend or rescind any such guidelines.
(7) The Commissioner of Police must comply with the Minister's guidelines.
A court that convicts or finds a person guilty of an offence under this Act may, in addition to any other order that it may make, order that any property of the person used in the commission of the offence is forfeited to the Crown.
ancillary action, in relation to an authorisation, means an action that is –
(a) directly related to achieving an authorised purpose; and
(b) reasonably required to be carried out in order to enable that purpose to be achieved;
authorisation means an authorisation issued under section 38B(1) ;
authorised person means a person to whom an authorisation has been issued under section 38B(1) ;
authorisation purpose, in relation to an authorisation, means a purpose specified, in accordance with section 38B(4)(b) , in the authorisation;
correctional officer means a person, appointed under section 5 of theCorrections Act 1997 , whose duties under that Act include the training or use of dogs in the detection of controlled substances;
employee means a person employed in any Agency of which the Commissioner of Police is the Head of Agency.
(2) Without limiting the generality of the meaning of supply in section 3 , supply, in relation to a controlled substance –
(a) includes transport and delivery, or either, of the controlled substance; but
(b) does not include sale or use, or provision for use, of the controlled substance for any purpose other than an authorisation purpose specified in the authorisation in accordance with which the supply occurs.
38B
Authorisation of possession and supply of controlled substances for certain purposes
38B Authorisation of possession and supply of controlled substances for certain purposes
(an authorised person) to possess and supply controlled substances for the purposes, for which the authorisation may be issued, that are specified in the authorisation, and to carry out any ancillary actions.
(2) The purposes for which an authorisation may be issued are –
(a) for the training, and use, by police officers or correctional officers, of dogs used, or to be used, in the detection of controlled substances; and
(b) for the transport and delivery of samples of controlled substances to –
(i) other police officers or correctional officers; or
(ii) other persons who are police officers for the purposes of an Act of another State, a Territory or the Commonwealth.
(3) An authorisation must be in writing and signed by the Commissioner of Police.
(4) An authorisation must specify the following:
(a) the name of the authorised person to whom the authorisation relates;
(b) the purposes for which the authorised person has been issued the authorisation;
(c) the conditions, if any, on which the authorisation has been issued;
(d) the period, of not more than one year, for which the authorisation remains in effect;
(e) the date on which the authorisation is signed by the Commissioner of Police.
(5) The Commissioner of Police is only to issue to a person an authorisation that is to be in effect for a period that is as long as is reasonably necessary to enable the authorisation purposes to be fulfilled.
(6) Despite any other Act or law of this jurisdiction, an authorised person who engages in conduct (whether in this jurisdiction or otherwise) that, but for this section, would constitute an offence is not criminally responsible in relation to the conduct if he or she engages in the conduct under and in accordance with an authorisation in relation to him or her that is in effect.
(1) An authorised person must, as soon as practicable after –
(a) the end of each financial year in which his or her authorisation was in effect; or
(b) his or her authorisation ceases to be in effect –
provide to the Commissioner of Police a written report in relation to the authorisation.
(2) A report, by an authorised person under subsection (1) , in relation to an authorisation is to contain the following details:
(a) the quantity, and a description, of each controlled substance that was possessed by the authorised person, or supplied by the authorised person to another person, under the authorisation;
(b) any ancillary actions taken by the authorised person;
(c) the name of any other person to whom a controlled substance was supplied by the authorised person under the authorisation and the address at which the controlled substance was so supplied;
(d) if the controlled substance was supplied by the authorised person to another person for delivery to a third person, the name and address of the third person to whom the controlled substance was to be delivered;
(e) each day in which the authorised person was in possession of the controlled substance.
38G
Commissioner of Police to keep certain records
38G Commissioner of Police to keep certain records
(1) The Commissioner of Police is to provide to the Ombudsman, as soon as practicable after the end of each financial year, a report (an operational report) containing –
(a) the number of authorisations issued during the financial year; and
(b) the purposes for which the authorisations were issued; and
(c) a summary of the details specified in each report received by the Commissioner of Police under section 38F(1) .
(2) The summary included, in the report under subsection (1) , in accordance with subsection (1)(c) is not required to contain any details that may, in the opinion of the Commissioner of Police, compromise the lawful carrying out of the duties of a police officer.
(1) The Governor may make regulations for the purposes of this Act.
(2) The regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.
(3) The Governor may make regulations of a savings or transitional nature consequent on the enactment of this Act.
(4) A provision of a regulation made pursuant to subsection (3) may, if the regulation so provides, take effect on the day proclaimed under section 2 or a later day.
40
Amendment of Schedule 1
40 Amendment of Schedule 1
(1) In this section,
component means a clause, subclause, paragraph or subparagraph.
(2) The Governor may, by order, amend Part 1 of Schedule 1 by doing any one or more of the following:
(a) inserting a new component or expression;
(b) omitting a component or expression;
(c) omitting a component or expression and substituting another component or expression.
(3) The Governor may, by order, amend Part 2 , 3 or 4 of Schedule 1 by doing any one or more of the following:
(a) inserting a new item in any table;
(b) omitting an item from any table;
(c) omitting an item from any table and substituting another item.
(a) the administration of this Act is assigned to the Minister for Justice and Industrial Relations; and
(b) the department responsible to the Minister for Justice and Industrial Relations in relation to the administration of this Act is the Department of Justice and Industrial Relations.
SCHEDULE 1 - Controlled substa
SCHEDULE 1 - Controlled substances and trafficable quantities
Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
1 Short title
1 Short title
This Act may be cited as the Misuse of Drugs Act 2001 .
2 Commencement
2 Commencement
This Act commences on a day to be proclaimed.
3 Interpretation
3 Interpretation
(1) In this Act, unless the contrary intention appears –
child means a person who has not attained the age of 18 years;
conceal, in relation to something, includes conceal or disguise –
(a) its source or nature; or
(b) its location or movement; or
(c) the rights of any person in relation to it; or
(d) the identity of its owner;
controlled drug means a substance, other than a growing plant, specified or described in Part 2 of Schedule 1 ;
controlled plant means a plant specified in Part 3 of Schedule 1 or any part of such a plant;
controlled precursor means a substance specified or described in Part 4 of Schedule 1 ;
controlled substance means a controlled drug, controlled plant or controlled precursor;
conveyance includes an aircraft, vehicle or vessel;
cultivate includes –
(a) plant a seed, seedling or cutting; and
Creates a statutory authorisation regime allowing the Commissioner of Police to authorise police officers, employees and correctional officers to possess and supply controlled substances for specified purposes, subject to written conditions, reporting and Ombudsman oversight (ss38A-38I).
Provides administrative instruments for updating the lists of controlled substances and trafficable quantities by Governor’s order and regulations (ss39-40 and Schedule 1).
The Act also sets governance touchpoints: the Commissioner of Police keeps records of authorisations (s38G), must report operational statistics annually to the Ombudsman (s38H), and the Ombudsman must report back (s38I). Courts may award analytical and prosecutorial costs to the prosecutor against a convicted defendant (s36B). The Act preserves lawful activities authorised by the Poisons Act 1971 and the Industrial Hemp Act 2015 (s4).
This summary states the instrument’s mechanics. The Act itself contains a number of presumptions, broad definitions and delegation of discretion to the Commissioner of Police and the Governor; those features materially shape incentives, compliance burdens and enforcement risk and are analysed in later sections with section citations.
Main concepts
The Act’s core legal architecture rests on a set of definitional and schedule concepts that determine scope and thresholds for liability, and on procedural concepts that determine enforcement and administrative oversight.
Key definitional concepts (Schedule/S 3):
Controlled substance, controlled drug, controlled plant, controlled precursor: each defined by reference to Parts 2-4 of Schedule 1 (s3(1); Schedule 1 Parts 2-4). The schedule entries include specific items and, where applicable, a "trafficable quantity" in column 3.
Trafficable quantity and aggregated trafficable quantity: set out in s3A. Trafficable quantity varies by listed substance or plant (Schedule 1). Aggregated trafficable quantity for mixtures or multiple substances is calculated by adding fractions of each substance’s trafficable quantity; the total equals or exceeds 1 to reach aggregated trafficable quantity (s3A(2)(a)-(c)).
Possession and "engaging in an activity": possession is broad; a controlled substance is taken to be in a person’s possession so long as it is on land or premises occupied by the person, enjoyed by the person in any place, or in the person's order and disposition, unless the person proves lack of knowledge (s3(3)). "Engage in" is defined inclusively to capture participation, control/direction, or providing finance/another resource that allows the activity (s3(2)).
Manufacture and cultivate: "manufacture" includes any process producing a substance other than cultivation, explicitly including extraction, refinement and transformation (s3(1)). "Cultivate" includes planting, tending, guarding or concealing plants, and harvesting (s3(1)). "Product" of a plant includes seeds and any part of the plant (s3(1)).
Offence structure:
Major offences: indictable offences that carry maximum imprisonment terms up to 21 years for specified conduct tied to intent/belief about sale (e.g. manufacture for sale, cultivation for sale, trafficking) (ss5-7,12).
Minor offences: summary offences with fines or shorter imprisonment for possession, use, sale/supply and non‑intentional manufacturing or cultivation (Part 3 Divisions 2-4, e.g. ss20-27AA).
Evidentiary presumptions and burden shifts:
If a trafficable quantity is proved (or preparation/possession/transport/guarding/import of trafficable quantity), the Act establishes presumptions that the accused had the requisite intention or belief about sale; the accused must rebut on the balance of probabilities (ss6(2),7(2),12(2),27AA(2)). The constitutive measure is the trafficable quantity defined in Schedule 1 and s3A.
Enforcement and disposal concepts:
Warrantless police search/seizure where a "prescribed belief" exists, with limits regarding entry to private premises (s29(1)-(2A)).
Special regime for evidentiary material that is unsafe or impracticable to hold: Commissioner must consult DPP for indictable matters, take two or more representative samples and preserve them (s37A(2)-(5)).
Crown ownership of seized or voluntarily surrendered controlled substances and prescription forms as soon as seized or surrendered (s37(1)-(2)).
Authorisation and oversight:
A written, time‑limited authorisation by the Commissioner of Police is required for police officers, employees and correctional officers to possess and supply controlled substances for explicitly specified purposes (training dogs, transport/delivery of samples) (ss38A-38B).
Authorisations must include name, purposes, conditions, period not exceeding one year, and be subject to variation or cancellation by the Commissioner (s38B(3)-(5); s38C).
Reporting obligations on authorised persons and record‑keeping/annual operational reporting by the Commissioner to the Ombudsman, and Ombudsman reporting to Parliament (ss38F-38I).
Administrative flex:
Governor and regulations: the Governor can make regulations for the Act and by order amend Schedule 1 (s39-40). The Acts Interpretation Act provisions apply to orders amending Schedule 1 (s40(4)).
Those are the conceptual levers that determine who is liable, how prosecutions will be run, where administrative discretion vests, and how evidentiary thresholds operate.
Who it affects
The Act’s reach is wide, because its definitions and offence formulations capture a broad set of actors and activities. The principal groups affected are:
Individuals who manufacture, cultivate, possess, use, administer, sell, supply, traffic, import or otherwise handle controlled drugs, plants or precursors. The Act differentiates between commercial/sale‑linked conduct (indictable, ss6-7,12) and non‑sale conduct (summary, Part 3). Possession, use and administration offences are available both as summary offences (e.g. ss23-25) and, where trafficable quantities or sale‑linked intent are involved, as indictable offences (s12).
Financial backers and facilitators. The definition of "engage in an activity" includes providing finance or another resource that allows the activity to be carried on (s3(2)(c)). That means financiers, lenders, investors, and suppliers of significant equipment or premises may fall within the Act’s scope if their support enables the conduct.
Corporate managers and bodies corporate. Where a body corporate commits an offence, each person concerned in management is taken to have committed the offence and may be convicted unless they prove lack of knowledge/consent or contrary directions (s35(1)-(2)). This places an onus on corporate governance and due diligence to avoid managerial liability.
Police, corrections staff and certain public employees. The Commissioner of Police may issue written authorisations allowing police officers, employees and correctional officers to possess and supply controlled substances for specified purposes (ss38A-38B). Those persons, if authorised, are exempt from criminal responsibility for conduct within the authorisation (s38B(6)), but must report and their authorisations are subject to oversight (ss38F-38I).
Health professionals, pharmacies and prescribers. The Act makes specific offences about forging, altering or unlawfully possessing prescriptions for controlled drugs and precursors, and obtaining prescriptions by false or misleading conduct (s28). It defines "health professional" and "blank prescription form" for that purpose (s28(1)).
Importers, transporters and border agents. The Act makes unlawful importation of a controlled substance into Tasmania unless authorised by another State law (s27A). It also criminalises importing precursors or controlled substances in trafficable quantities as part of trafficking offences (s12(2)(e), s3A).
Third parties who receive property derived from drug offences. Receiving property directly derived from a drug offence with knowledge of lack of legal entitlement is an offence (s17). Property derived rules are expressly defined (s15).
Entities dealing with hazardous chemicals or evidentiary material. The Commissioner may destroy or render safe hazardous chemicals and controlled substances that are impracticable or unsafe to keep, after taking representative samples and consulting the DPP where indictable proceedings are involved (s37A(2)-(5)).
Indirectly affected groups:
Businesses that handle any substance that could fall within Schedule 1 (for example chemical suppliers, agricultural suppliers, or logistics providers) because "sell", "supply", "manufacture" and "transport" are defined broadly to include a range of commercial acts (s3 definitions).
Owners or occupiers of premises where controlled substances are present, due to the broad possession rule that locates possession on premises occupied by a person unless they prove no knowledge (s3(3)).
Persons providing legal, forensic or analytical services: the court may award analysis costs against convicted defendants (s36B), and the Commissioner must keep chain‑of‑custody/type records for authorisations (s38G).
Who bears the direct enforcement and administrative costs:
Defendants who are convicted may be ordered to pay reasonable analysis and prosecutorial expenses assessed by the court (s36B).
The Crown (via police) bears costs of authorisation administration but is required to keep records and produce annual operational reports to the Ombudsman (ss38G-38H).
The Act therefore affects a spectrum from individual users to corporate actors, financiers, law enforcement, health professionals and regulators; the precise legal exposure depends on the conduct, quantities and whether an authorisation or other statutory permission applies.
Key duties and rights
The Act imposes substantive criminal prohibitions, procedural obligations and reporting duties while creating rights for authorised persons and administrative entitlements for enforcement agencies. The most material duties and rights include:
Substantive duties (criminal prohibitions):
Do not manufacture, cultivate, sell, supply, traffic or import controlled substances unless lawfully authorised. Major indictable offences include manufacture or cultivation with intent to sell, and trafficking (ss6-7,12). Summary offences create parallel prohibitions for non‑sale conduct (Part 3, e.g. ss20-27AA).
Do not possess equipment, instructions or other things intended for use in manufacture or cultivation for sale (ss8-9).
Do not possess or use utensils or paraphernalia used for preparing or administering controlled drugs (s23).
Do not forge, alter, utter, or obtain a prescription dishonestly, and do not possess a blank prescription form without lawful excuse (s28).
Do not receive property directly derived from a drug offence if you have no legal entitlement and know it is derived from a drug offence (s17). Concealing, transferring, converting or removing property derived from a drug offence with the intention of evading prosecution, pecuniary penalties or confiscation is an offence (s16).
Procedural and evidentiary effects (duties affecting proceedings and proof burdens):
If a trafficable quantity is proved, the court presumes intent or belief to sell unless the accused proves otherwise on the balance of probabilities (ss6(2),7(2),12(2),27AA(2)). That shifts an evidential/legal burden to the accused in those circumstances.
Possession is taken to exist in premises occupied by the person unless they prove no knowledge (s3(3)). That creates an evidential disadvantage for occupiers.
A person seized of controlled substances under a search or warrant must provide name, address and the place and person from whom the substance was obtained when required by police (s31(1)); failing to comply attracts a fine (s31(2)) and can lead to arrest (s31(3)).
Rights and authorisations:
The Commissioner of Police has authority to grant written authorisations that exempt authorised persons from criminal responsibility for conduct that would otherwise be an offence, provided the conduct is within and in accordance with an authorisation (s38B(6)). An authorisation must be in writing, signed, time‑limited (not more than one year) and specify name, purposes and any conditions (s38B(3)-(4)). The Commissioner must only issue authorisations for reasonably necessary periods (s38B(5)).
An authorised person has duties to report (s38F): provide, at least annually or on cessation, a written report specifying quantities and descriptions of controlled substances possessed/supplied under the authorisation, ancillary actions taken, recipient names and addresses and days of possession (s38F(2)).
The Commissioner has duties to keep records of authorisations, notices of variation/cancellation, and reports from authorised persons (s38G). The Commissioner must also submit an annual operational report to the Ombudsman (s38H(1)).
The Ombudsman must prepare a report on the operational report, including opinions on adequacy of records and on whether authorisations were effective and appropriate, and include it in the Ombudsman’s annual report (s38I).
Enforcement powers and constraints:
Police officers who form a prescribed belief may search, detain, seize conveyances/animals and seize anything that may be evidence without warrant, and may use reasonable force (s29(2)-(3)). The warrantless powers are limited as to private premises: they do not apply to private premises unless the prescribed belief was formed only after lawful entry (s29(2A)).
Where an officer detains a person for search, a strip search must be conducted by an officer of the same sex, and a magistrate must authorise body cavity searches (s30(2)-(5)). Force used in searches must be reported to the Commissioner within 7 days (s30(2)(c)).
The Commissioner may cause evidentiary material to be made safe, rendered inert or destroyed if impracticable or unsafe to hold, but for indictable matters must consult the Director of Public Prosecutions and take representative samples that are kept securely (s37A(2)-(5)).
Civil and administrative outcomes:
Seized or surrendered controlled substances and prescription forms become property of the Crown as soon as seized or surrendered and may be disposed of as the Minister directs (s37(2)).
On conviction, a court may order forfeiture of any property used in commission of the offence (s38).
Other duties and procedural protections:
A prosecution witness is not obliged to disclose the source of information to the defence (s34), which affects defence strategies and discovery expectations.
Corporations carry vicarious exposure: persons in management are prima facie taken to have committed an offence when the corporation does, but they can rebut (s35).
Children are not criminally liable for ss13 (procuring child) or 14 (supplying to child) if they were themselves children when the conduct occurred (s36).
These duties and rights allocate compliance responsibilities to individuals, corporations and authorised officers, and place administrative reporting and record‑keeping duties on police executive functions while giving the Commissioner broad but reportable discretion to authorise otherwise‑prohibited conduct.
Penalties and enforcement
The Act specifies a two‑tier penalty regime with higher maximum terms for indictable offences in Part 2 and lower penalties for summary offences in Part 3, coupled with specific enforcement powers and dispositional authorities:
Penalty framework:
Indictable offences (Part 2): Many principal offences carry a maximum penalty of imprisonment up to 21 years. Examples:
Manufacturing a controlled drug for sale or in belief another intends to sell: maximum 21 years (s6(1)).
Cultivating a controlled plant for sale: maximum 21 years (s7(1)).
Possessing equipment or instructions intended for manufacture or cultivation for sale: maximum 21 years (ss8-9).
Manufacturing/selling controlled precursors for manufacture/sale of controlled drugs: maximum 21 years (ss10-11).
Trafficking in controlled substances: maximum 21 years (s12(1)).
Procuring a child to traffic, supplying a controlled drug to a child: each maximum 21 years (ss13-14).
Concealing, transferring, converting or removing property derived from a drug offence with intent to evade prosecution/confiscation: maximum 21 years (s16).
Receiving property directly derived from a drug offence with knowledge and without legal entitlement: maximum 21 years (s17(1)).
Summary offences (Part 3): Fines (up to specified penalty units) and imprisonment of shorter terms apply. Examples:
Manufacturing controlled precursor, controlled drug, cultivating controlled plant: fine not exceeding 50 penalty units or imprisonment not exceeding 2 years (ss20-22).
Cultivating a controlled plant for sale at summary level (s22A): penalty up to 100 penalty units or imprisonment up to 4 years; if a trafficable quantity is cultivated s22A(2) creates a presumption.
Possession/use/administration offences: fines up to 50 penalty units or imprisonment up to 2 years (ss23-25).
Selling or supplying a controlled drug or plant at summary level: fine up to 100 penalty units or imprisonment up to 4 years (ss26-27).
Trafficking as a summary offence: fine up to 100 penalty units or imprisonment up to 4 years (s27AA).
Unlawful importation of a controlled substance into Tasmania: fine up to 50 penalty units or imprisonment up to 2 years (s27A).
Offences in relation to prescriptions (forgery, possessing forged prescriptions, unlawful alteration, obtaining by deception, possessing blank prescription forms without lawful excuse): fines up to 50 penalty units or imprisonment up to 2 years (s28).
Enforcement powers and mechanisms:
Warrantless search, seizure and detention. Where a police officer has a "prescribed belief" that a controlled substance or related thing is in the possession of a person, on or in a conveyance, or on an animal, the officer may search the person or conveyance, seize the conveyance or animal, and seize evidence without warrant (s29(1)-(2)). Reasonable force may be used (s29(3)). There is a limitation for private premises: the warrantless power does not apply to private premises unless the prescribed belief was formed after lawful entry (s29(2A)).
Personal searches and body cavity searches. Strip searches must be conducted by an officer of the same sex (s30(2)(a)-(b)). If a body cavity search is proposed, the person must be brought before a magistrate, and the magistrate may order a medical practitioner to conduct the search; the person may request a practitioner of the same sex (s30(2)(d)-(5)). Force to carry out a magistrate‑ordered cavity search may be used where necessary (s30(7)). Uses of force in searches must be reported to the Commissioner within 7 days (s30(2)(c)).
Arrest powers tied to searches. Police may arrest without warrant where they reasonably believe a person has committed an offence under the Act (s29(4)). After a search or seizure, an officer may require identifying and source information and may arrest if the person fails to comply or gives information the officer reasonably believes false (s31(1)-(3)).
Pursuit into private property. Immediate uninterrupted pursuit that leads a suspect into a private residence or non‑public place authorises entry without warrant using no more force than reasonably necessary (s32).
Search warrant execution powers. A police officer executing a search warrant may arrest persons found at the place suspected of offences and search/detain them for the purpose (s33).
Forfeiture and disposal. Seized or voluntarily surrendered controlled substances and prescription forms become Crown property on seizure or surrender and may be disposed of as the Minister directs (s37(1)-(2)). On conviction, courts may order forfeiture of property used in the commission of the offence (s38). Where evidentiary material is unsafe to keep, the Commissioner may render it safe or destroy it after consultation and sample preservation obligations (s37A).
Costs and financial consequences. Courts may assess and award against a convicted defendant the reasonable expense of analysis/examination caused by the prosecutor, plus prosecutorial travel/time and analyst attendance costs as part of costs of the prosecutor (s36B).
Oversight and checks:
Commissioner discretion over authorisations is constrained by record‑keeping and reporting obligations (ss38B-38G), by the requirement that authorisations be in writing and time‑limited (s38B(3)-(5)), and by annual operational reporting to the Ombudsman with subsequent Ombudsman commentary (ss38H-38I).
The Commissioner must consult the Director of Public Prosecutions before disposing of evidentiary material relevant to indictable proceedings under s37A(4)(a).
Penalties thus combine criminal incarceration, fines, forfeiture of property, court‑ordered costs, and administrative disposal by the Crown; enforcement powers provide extensive search, seizure and arrest authorities subject to statutory procedure and reporting requirements.
How it interacts with other laws
The Act explicitly interacts with several other legislative instruments and prescribes how its provisions operate in relation to them; the interaction points in the text are discrete and specific.
Express preservation of certain statutes:
The Act does not displace provisions in the Poisons Act 1971 or the Industrial Hemp Act 2015 and does not render unlawful anything done in accordance with either statute (s4). That means activities authorised or regulated under those statutes remain lawful notwithstanding the general prohibitions in this Act.
Presumptions of authorisation under other law:
Importation into Tasmania: s27A makes it an offence to import a controlled substance into Tasmania unless the person is authorised by or under another law of the State. That creates a dependency on other statutes or regulatory permissions to authorise importers.
Procedural and interpretive cross‑references:
The definition of "analyst" in s36B refers to the Poisons Act 1971 for meaning. The Act depends on that external definition when awarding analysis costs (s36B(1)-(3)).
Orders amending Schedule 1 are to be treated as if they were regulations within the meaning of the Acts Interpretation Act: specific sections of the Acts Interpretation Act 1931 apply to Governor’s orders under s40(4). That brings in procedural rules for instruments and their publication.
Interaction with criminal procedure:
The Act’s Part 2 offences are designated indictable offences (s5) and Part 3 offences are summary offences (s18), which dictates the route of prosecution and applicable procedural law (magistrates’ court for summary matters, indictable matters proceeding by committal or directly to higher courts depending on practice).
Section 36A supplies alternative convictions: where a person is indicted for an indictable offence and found not guilty, the court may convict for alternative summary offences if evidence establishes them (s36A). The section expressly states it operates despite anything to the contrary in Chapter XXXIX of Part IX of the Criminal Code (s36A(4)). This creates a specific cross‑statutory rule on alternative findings.
Checks on police powers that reference other Acts:
"Search warrant" is defined by reference to the Search Warrants Act 1997 (s3(1)). The Act therefore works alongside that statute’s provisions on warrants.
Body cavity searches require a magistrate order under this Act (s30(2)(d)-(e)); but the process will interact with general magistrates court practices and medical practitioner obligations under health and privacy laws, not referenced here but practically relevant.
Administrative reporting and oversight:
The Commissioner’s annual operational report to the Ombudsman (s38H) and the Ombudsman’s inclusion of its report in the Ombudsman Act annual report (s38I(2) referencing s30 of the Ombudsman Act 1978) link this Act into the broader public accountability framework.
Regulatory instruments:
The Governor may make regulations for the purposes of the Act and for savings/transitional matters (s39). The Governor may also amend Schedule 1 by order (s40), and those orders are subject to procedural provisions of the Acts Interpretation Act (s40(4)). That means the substance of which drugs/plants/precursors and their trafficable quantities are controlled can be updated by subordinate instruments rather than primary amendment.
In summary, the Act preserves and integrates with the Poisons Act and the Industrial Hemp Act (s4), cross‑references the Search Warrants Act and the Poisons Act for particular definitions and procedures (s3(1), s36B(1), definition of "search warrant"), ties into the Ombudsman and DPP roles for oversight and prosecutorial consultation (ss37A,38H-38I), and uses delegated legislative instruments (regulations and Governor’s orders) to keep the schedules and rules current (ss39-40). These linkages allocate complementary regulatory responsibilities across statutes and agencies.
Amendment history
The source text contains inline amendment annotations and schedule amendment notes that identify discrete legislative changes and insertions over time. The Act as provided records the following notable amendments and insertions (citations and dates are those embedded in the text):
Sectional insertions and amendments relating to definitions and presumptions:
Section 3 Subsection (1) amendments recorded: No. 3 of 2010, Schedule 1; No. 7 of 2012, s23; No. 76 of 2003, Schedule 1 (see the notes in s3(1)). These notes indicate the definition block has been modified at different times.
Section 3A "Meaning of 'trafficable quantity' and determining 'aggregated trafficable quantity'" was inserted by No. 77 of 2005, s5, applied 15 Dec 2005 (see s3A heading note).
Amendments to search/seizure and disposal provisions:
Section 29 Subsection (1) amended by No. 77 of 2005, s8 (noted in s29(1) annotation).
Section 29 Subsection (2A) inserted by No. 77 of 2005, s8 (see s29(2A) note).
Section 37 was substituted by No. 77 of 2005, s12, applied 15 Dec 2005 (see s37 heading note), and Section 37A was inserted by that same instrument (s37A heading note).
Amendments inserting or changing alternative convictions and costs:
Section 36A (Alternative convictions) was inserted by No. 9 of 2004, s7, applied 27 May 2004 (s36A heading note).
Section 36B (Costs of analysis or examination) was inserted by No. 9 of 2004, s7, applied 27 May 2004 (s36B heading note).
Amendments to Part 3 and trafficking definitions:
Sections added in 2020-2021: Section 22A "Cultivating controlled plant for sale" was inserted by No. 27 of 2020, s21, applied 01 Jul 2021 (s22A heading note).
Section 27AA "Trafficking controlled substances" was inserted by No. 27 of 2020, s23, applied 01 Jul 2021 (s27AA heading note).
Authorisation framework:
Division 4 of Part 4 (ss38A-38I) was inserted by No. 7 of 2016, s4, applied 20 May 2016 (each of ss38A-38I carry insertion notes showing that instrument and date).
Multiple schedule amendments by subordinate instruments:
Schedule 1 Part 1 was substituted by S.R. 2011, No. 74, applied 03 Aug 2011 (Schedule 1 Part 1 note).
Part 2 of Schedule 1 contains many amendment notes, listing numerous statutory rules and years (S.R. 2002 No.111, S.R. 2003 No.87, S.R. 2005 No.39, S.R. 2006 No.90, S.R. 2011 No.74, S.R. 2012 No.86, S.R. 2015 No.20, S.R. 2016 No.72, S.R. 2022 No.89, and others). These annotations show the schedule has been updated frequently through subordinate legislation.
Part 3 and Part 4 of Schedule 1 also bear amendment notes (S.R. 2002 No.111; S.R. 2005 No.39; S.R. 2011 No.74, etc.), and Part 4 reflects updates to controlled precursor listings (see the heading notes).
Miscellaneous:
Section 4 (relationship with other Acts) was amended by No. 42 of 2015, s40, applied 02 Mar 2016 (s4 heading note).
Section 3A and various subsections were inserted or amended by No. 77 of 2005 (multiple citations in the text).
Section 37A allows Ministerial guidelines which are expressly not statutory rules or subordinate legislative instruments for the purposes of Rules Publication Act 1953 and Subordinate Legislation Act 1992 (s37A(8)(a)-(b)).
The annotations in the source text specify exact amendment instruments and dates for key insertions and substitutions (for example, s3A, s36A, s36B, ss37-37A, and the 2016 authorisation framework). Schedule 1 has repeatedly been updated by statutory rules over many years; the schedule contains embedded notes indicating the particular statutory rule numbers and applied dates for each batch of changes.
This record shows the Act’s schedules and selected operational provisions have been dynamic and typically amended through subordinate instruments (statutory rules) and occasional primary amendments that inserted new sections or Divisions. The Governor’s power to amend Schedule 1 by order is explicitly provided (s40), and the Acts Interpretation Act procedural provisions apply to those orders (s40(4)).
Litigation history
The source text supplied contains no judicial decisions, reported cases or litigation extracts. There are no case names or reported judicial interpretations embedded in the Act text as provided. Where the Act creates presumptions or shifts burdens of proof (for instance, presumptions arising on proof of a trafficable quantity in ss6(2),7(2),12(2),27AA(2)), courts will be the forum in which those provisions are applied and tested, but no such judicial history is contained within the instrument text supplied.
Consequently, this deep dive cannot cite case law or litigation outcomes from the source. Any litigation history, evidentiary interpretation, or judicial challenge to the Act’s provisions would need to be derived from external case reports and is not present in the provided material.
Gotchas
The Act includes several features that may produce unexpected legal exposure or operational risk if not appreciated. The following are concrete mechanisms and traps grounded in the text:
Broad and constructive possession rules:
A controlled substance is taken to be in a person's possession if it is on any land or premises occupied by the person, or is enjoyed by the person in any place, or is in the person's order and disposition, unless the person proves lack of knowledge (s3(3)). Occupiers therefore carry a burden to show lack of knowledge; simply being the proprietor or tenant does not, by itself, negate possession.
"Engage in" includes finance and other enabling resources:
The Act deems a person to engage in an activity if they participate, control or direct, or provide finance or another resource that allows the activity to be carried on (s3(2)). Lenders, landlords, subcontractors or suppliers who provide resources may be captured if their contribution enables the offending activity.
Wide definitions of commercial acts:
"Sell" and "supply" are drafted expansively to include agreement to sell, offer, possess for sale, deal in, authorise or permit such conduct (s3(1) definitions). "Supply" expressly includes administration and offering to supply (s3(1)). Corporations and intermediaries need to be aware that passive or indirect commercial roles can meet statutory definitions.
Presumptions on trafficable quantities shift evidential burdens:
Proof of a trafficable quantity creates a statutory presumption that the accused had the relevant intention or belief to sell, unless the accused proves otherwise on the balance of probabilities (ss6(2),7(2),12(2),27AA(2)). The trafficable quantity thresholds in Schedule 1 are therefore pivotal; once those thresholds are crossed, the defence will face a reverse burden of proof on intent/belief.
Aggregation rules:
Aggregated trafficable quantity can be established by additive fractional calculation (s3A(2)): quantities of multiple substances are calculated as fractions of their respective trafficable quantities and summed. Combined lower amounts across several substances can meet the aggregated threshold (s3A(2)(a)-(c)).
Crown ownership on seizure:
Controlled substances or prescription forms seized, surrendered or found become Crown property immediately (s37(2)(a)) and may be disposed of as the Minister directs (s37(2)(b)). Those facing seizure should note that ownership shifts on seizure and disposal is at ministerial direction; retrieval or civil recovery may be limited.
Warrantless search and seizure with limited private‑premises protection:
Police may conduct searches and seizures without warrant where they have a prescribed belief (s29(2)). However, s29(2A) qualifies that the warrantless power does not apply to private premises unless the prescribed belief was formed only after lawful entry. The interplay of "lawful entry" and when the prescribed belief is formed is operationally significant,establishing whether prior lawful entry occurred will be dispositive.
Potentially invasive personal search powers:
Strip searches and body cavity searches are authorised under strict statutory routes: strip searches must be sex‑matched where possible and use of force must be reported (s30(2)(a)-(c)); body cavity searches require magistrate authorisation and medical practitioner involvement (s30(2)(d)-(5)). The statutory process imposes procedural protections but also allows compulsion.
Prosecution witness source privilege:
A prosecution witness is not obliged to disclose the fact of receipt of information, the nature of that information, or the name of the person who gave it (s34). This can complicate a defence seeking to test the origin or credibility of information forming the basis of prosecution evidence.
Corporate manager exposure:
Managers of bodies corporate are taken to have committed offences committed by the corporation unless they prove lack of knowledge/consent or that the act was contrary to their orders/directions (s35). This requires active compliance systems and recordkeeping to enable rebuttal where corporate offences are prosecuted.
Costs exposure for defendants:
Courts may award the costs of chemical analysis/examination and prosecutorial travel and attendance against convicted defendants (s36B). Defendants convicted after analysis should be prepared for these additional financial obligations.
Limited delegation on authorisations:
The Commissioner of Police may not delegate the power to issue or cancel authorisations under ss38B-C (s38D). That concentrates discretion at Commissioner level, making institutional access to authorisations reliant on single executive decision‑makers.
Reporting obligations for authorised persons:
Authorised persons must provide detailed reports at least annually or on cessation, including specific quantities, recipient names and addresses, and days possessed (s38F(1)-(2)). Failure to comply could undermine the protective effect of an authorisation and expose the authorised person to administrative or disciplinary consequences.
Interplay with Poisons and Industrial Hemp regimes:
The Act explicitly preserves lawful acts under the Poisons Act 1971 and the Industrial Hemp Act 2015 (s4). Entities relying on those Acts for lawful activity need to maintain documentary proof of compliance to avoid exposure under this Act.
In short, the statutory architecture uses expansive definitions and evidentiary presumptions, and combines them with broad police powers and executive discretion. Those features create compliance, evidentiary and operational risks for occupiers, financiers, corporate managers, health sector actors and authorised personnel unless they adopt clear documentation, reporting and authorisation strategies.
How to comply
This section sets out concrete compliance steps derived from the statutory text. It is a practical checklist for counsel, compliance officers, risk managers and operational staff.
Determine applicability under Schedule 1 and monitor updates:
Identify whether substances, plants or precursors your organisation handles are listed in Schedule 1 Parts 2-4 and note the trafficable quantities in column 3 (Schedule 1 Part 2-4). Because Schedule 1 is amended by orders and statutory rules (see Schedule 1 amendment notes and s40), implement a compliance process for monitoring Gazette/Regulation/Order changes and to update controlled‑substance inventories promptly.
For activities that would otherwise be prohibited, seek statutory authorisation or operate under another enabling Act:
If possessing, transporting or supplying controlled substances for law enforcement training, sample transport or related purposes, obtain a written authorisation from the Commissioner of Police (ss38A-38B). Ensure the authorisation is in writing, names the authorised person, specifies purposes, conditions and period (s38B(3)-(4)), and that the term is no longer than reasonably necessary (s38B(5)). Where importation is contemplated, confirm authorisation under relevant State law before importing (s27A).
Maintain documented chain of custody and sample procedures:
Where substances are seized or held as evidentiary material, the Commissioner must take at least two representative samples before destruction in indictable matters and ensure secure retention (s37A(4)-(5)). For private labs, ensure that analytical processes are documented in a way that supports court admissibility and potential prosecutorial cost recovery under s36B.
Robust premises and contractual controls to rebut possession presumptions:
Given possession is imputed to occupiers unless lack of knowledge is proved (s3(3)), occupiers should implement strict access controls, visitor logs, CCTV, written lease/residence agreements, evidence of reasonable steps to detect and prevent contamination or storage, and internal reporting protocols. These records are necessary to support a defence of lack of knowledge.
Due diligence for financiers, suppliers and landlords:
Because "engage in an activity" includes providing finance or resources that allow the activity (s3(2)), adopt enhanced due diligence for transactions that could plausibly enable manufacture, cultivation, trafficking or storage of controlled substances. Transaction screening, contractual covenants prohibiting unlawful use, and termination rights on reasonable suspicion are prudent.
Corporate governance and management controls:
To mitigate manager liability under s35, maintain clear policies, instructions, supervision records and evidence of active steps taken to prevent corporate offences. Document orders/directions and supervisory structures so that a manager can demonstrate lack of knowledge or that an act occurred contrary to orders.
Prescription handling protocols:
For prescribers, pharmacies and clinics, ensure prescription forms are securely stored and used only for legitimate prescriptions (s28(1) definition of "blank prescription form"). Avoid possession of blank forms without lawful excuse (s28(5)), ensure accurate writing of prescriptions and detect and report forged or altered prescriptions (s28(2)-(4)).
Match privacy, medical and search procedures with statutory protections:
If police detain or search employees on your premises, be aware of the statutory search procedures: same‑sex officers for strip searches, reporting requirements for force used, and magistrate orders for body cavity searches (s30). Train security and HR staff on handling interactions with police and preserving evidence and to record events to support later proceedings or complaints.
Comply with reporting obligations if authorised:
Authorised persons must supply detailed reports annually or on cessation (s38F(1)-(2)). Maintain internal logs that record quantities, days in possession, recipients and addresses and ancillary actions so reports can be compiled accurately and promptly.
Prepare for seizure and forfeiture outcomes:
Because seized controlled substances become Crown property immediately (s37(2)), businesses and individuals should have contingency plans for loss of inventory and insurance assessments that account for quick turnover to Crown ownership. Keep documentation on legitimacy of stock and supply chains to contest improper seizure or to seek return where lawful.
Legal defence planning for trafficable quantities:
If inventory or seizure involves trafficable quantities (Schedule 1; s3A), prepare factual rebuttals and evidence that negate intent or belief of sale (the accused bears the balance of probabilities burden once a trafficable quantity is proved under ss6(2),7(2),12(2),27AA(2)). This requires gathering contemporaneous business records, communications, prescribing instructions, and other exculpatory materials.
Monitor and engage with regulatory changes:
Because the Governor may amend Schedule 1 by order and the Governor can make regulations (ss39-40), establish a regulatory surveillance programme and participate in consultations where possible. Ensure procurement, inventory and legal teams are alerted to schedule and regulation changes.
Preservation of samples and cooperation with DPP where indictable matters are possible:
If in possession of hazardous evidentiary material, be prepared to accommodate sample requests and to store representative samples securely as required by s37A. Where the Commissioner consults the DPP for indictable matters (s37A(4)(a)), expect prosecutorial involvement in disposal decisions.
Training and record retention:
Train frontline staff about the Act’s definitions (e.g. manufacture, cultivate, supply) and retain records that can rebut possession or intent presumptions (s3(1), s3A, ss6-7,12). Keep records for periods consistent with prosecutorial timeframes: summary offences have a two‑year limitation for commencing proceedings (s19).
These compliance steps flow directly from the Act’s definitions, presumptions and reporting duties. They are operationally focused on recordkeeping, due diligence, authorisation procurement, monitoring subordinate instruments, and ensuring procedural protections when dealing with enforcement.
(d) guard or conceal a plant against discovery or interference, whether by humans or natural predators; and
(e) harvest a plant, whether by picking part of the plant, by separating resin or another substance from the plant or by other means;
manufacture means any process by which a substance is produced, other than the cultivation of a plant, and includes –
(a) the process of extracting or refining a substance; and
(b) the process of transforming the substance into a different substance;
[Section 3 Subsection (1) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010]
place includes premises;
[Section 3 Subsection (1) amended by No. 7 of 2012, s. 23, Applied:01 Jul 2012]Poisons List has the same meaning as in the Poisons Act 1971 ;
[Section 3 Subsection (1) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004]
premises includes a conveyance;
prepare, in relation to supplying a drug, includes –
(a) packaging the drug; and
(b) separating the drug into discrete units;
product, of a plant, includes –
(a) a seed of the plant; and
(b) a part of the plant, whether live or dead; and
(c) a substance prepared from the plant;
regulations means regulations made and in force under this Act;
search warrant means a warrant issued under the Search Warrants Act 1997 ;
sell means sell, whether by wholesale or retail, and includes –
(a) agree to sell; and
(b) offer, or expose, for sale; and
(c) keep, or possess, for sale; and
(d) deal in, barter or exchange; and
(e) send, forward, deliver or receive for sale; and
(f) authorise, direct, cause, permit or suffer any of those things to be done;
supply, in relation to a substance, includes –
(a) administer the substance, whether orally, subcutaneously or by other means; and
(b) offer or agree to supply the substance;
traffic, in relation to a controlled substance, includes –
(a) sell the substance; and
(b) prepare the substance for supply with the intention of selling it or in the belief that another person intends to sell it; and
(c) transport the substance with the intention of selling it or in the belief that another person intends to sell it; and
(d) guard or conceal the substance with the intention of selling it or in the belief that another person intends to sell it; and
(e) [Section 3 Subsection (1) amended by No. 77 of 2005, s. 4, Applied:15 Dec 2005] possess the substance with the intention of selling it; and
(f) [Section 3 Subsection (1) amended by No. 77 of 2005, s. 4, Applied:15 Dec 2005] import the substance into Tasmania with the intention of selling it or in the belief that another person intends to sell it;
[Section 3 Subsection (1) amended by No. 77 of 2005, s. 4, Applied:15 Dec 2005]
transport includes deliver.
(2) For the purposes of this Act, a person is taken to engage in an activity if the person –
(a) participates in the activity; or
(b) controls or directs the activity; or
(c) provides finance or another resource that allows the activity to be carried on.
(3) Without restricting the generality of the expression "possession", a controlled substance is taken to be in a person's possession for the purposes of this Act so long as it is on any land or premises occupied by the person, or is enjoyed by the person in any place or is in the person's order and disposition, unless the person proves that he or she had no knowledge of the substance.
3A Meaning of "trafficable quantity" and determining "aggregated trafficable quantity"
3A Meaning of "trafficable quantity" and determining "aggregated trafficable quantity"
[Section 3A Inserted by No. 77 of 2005, s. 5, Applied:15 Dec 2005]
(1) In this Act –
trafficable quantity, of a controlled substance, means –
(a) in the case of a controlled drug that is not mixed with or contained in any other substance, a quantity of the controlled drug that is not less than the quantity specified in column 3 of the table in Part 2 of Schedule 1 in relation to the controlled drug; and
(b) in the case of a controlled drug that is mixed with or contained in another substance where the combined quantity of the substances is not less than the quantity specified in column 3 of the table in Part 2 of Schedule 1 in relation to the controlled drug, any quantity; and
(c) in the case of a controlled plant, a quantity of the controlled plant that is not less than the quantity specified in column 3 of the table in Part 3 of Schedule 1 in relation to the controlled plant; and
(d) in the case of a controlled precursor, a quantity of the controlled precursor that is not less than the quantity specified in column 3 of the table in Part 4 of Schedule 1 in relation to the controlled precursor; and
(e) in the case of 2 or more controlled substances together, an aggregated trafficable quantity of the controlled substances.
(2) To determine, for the purpose of this Act, whether a quantity of 2 or more controlled substances together constitutes an aggregated trafficable quantity –
(a) the quantity of each of the controlled substances is to be calculated as a fraction of the trafficable quantity of that controlled substance; and
(b) the fractions calculated under paragraph (a) are to be added together; and
(c) the quantity is to be taken to constitute an aggregated trafficable quantity if the total of those fractions so added together is equal to or greater than the number "1".
4 Relationship with other Acts
4 Relationship with other Acts
[Section 4 Amended by No. 42 of 2015, s. 40, Applied:02 Mar 2016] Nothing in this Act affects any provision made by or under the Poisons Act 1971 or the Industrial Hemp Act 2015 or renders unlawful anything done in accordance with any such provision.
Part 2 Major offences
Part 2 Major offences
Division 1 Proceedings on offences
Division 1 Proceedings on offences
5 Offences in this Part are indictable offences
5 Offences in this Part are indictable offences
The offences in this Part are indictable offences.
Division 2 Manufacturing and cultivation
Division 2 Manufacturing and cultivation
6 Manufacturing controlled drug for sale
6 Manufacturing controlled drug for sale
(1) A person must not manufacture a controlled drug –
(a) with the intention of selling the controlled drug; or
(b) in the belief that another person intends to sell the controlled drug.
Penalty: Imprisonment for a term not exceeding 21 years.
(2) [Section 6 Subsection (2) amended by No. 9 of 2004, s. 4, Applied:27 May 2004] If it is proved in proceedings for an offence under subsection (1) that the accused manufactured a trafficable quantity of a controlled drug, it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the manufactured drug required to constitute the offence.
(3) [Section 6 Subsection (3) omitted by No. 9 of 2004, s. 4, Applied:27 May 2004] . . . . . . . .
7 Cultivating controlled plant for sale
7 Cultivating controlled plant for sale
(1) A person must not cultivate a controlled plant –
(a) with the intention of selling the controlled plant or any of its products; or
(b) in the belief that another person intends to sell the controlled plant or any of its products.
Penalty: Imprisonment for a term not exceeding 21 years.
(2) [Section 7 Subsection (2) amended by No. 9 of 2004, s. 5, Applied:27 May 2004] If it is proved in proceedings for an offence under subsection (1) that the accused cultivated a trafficable quantity of a controlled plant, it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled plant or its products required to constitute the offence.
(3) [Section 7 Subsection (3) omitted by No. 9 of 2004, s. 5, Applied:27 May 2004] . . . . . . . .
8 Possessing thing intended for use in manufacture of controlled substance for sale
8 Possessing thing intended for use in manufacture of controlled substance for sale
A person must not possess any equipment, instruction or other thing –
(a) with the intention of using it to manufacture and sell a controlled substance; or
(b) with the intention of using it to manufacture a controlled substance in the belief that another person intends to sell the controlled substance.
Penalty: Imprisonment for a term not exceeding 21 years.
9 Possessing thing intended for use in cultivation of controlled plant for sale
9 Possessing thing intended for use in cultivation of controlled plant for sale
A person must not possess any equipment, instruction or other thing with the intention of using it to –
(a) cultivate and sell a controlled plant; or
(b) cultivate a controlled plant in the belief that another person intends to sell the controlled plant.
Penalty: Imprisonment for a term not exceeding 21 years.
10 Manufacturing controlled precursor intended for use in manufacture of controlled drugs for sale
10 Manufacturing controlled precursor intended for use in manufacture of controlled drugs for sale
(1) A person must not manufacture a controlled precursor –
(a) with the intention of manufacturing and selling a controlled drug; or
(b) with the intention of manufacturing a controlled drug in the belief that another person intends to sell the controlled drug.
Penalty: Imprisonment for a term not exceeding 21 years.
(2) A person must not manufacture a controlled precursor –
(a) with the intention of selling the controlled precursor; and
(b) in the belief that the person to whom the controlled precursor is sold intends to use it to manufacture a controlled drug.
Penalty: Imprisonment for a term not exceeding 21 years.
11 Selling controlled precursor for use in manufacturing controlled drug
11 Selling controlled precursor for use in manufacturing controlled drug
A person must not sell a controlled precursor in the belief that the person to whom the controlled precursor is sold, or another person, intends to use it to manufacture a controlled drug.
Penalty: Imprisonment for a term not exceeding 21 years.
Division 3 Trafficking and supply
Division 3 Trafficking and supply
12 Trafficking in controlled substance
12 Trafficking in controlled substance
(1) A person must not traffic in a controlled substance.
Penalty: Imprisonment for a term not exceeding 21 years.
(2) [Section 12 Subsection (2) amended by No. 9 of 2004, s. 6, Applied:27 May 2004] If it is proved in proceedings for an offence under subsection (1) that the accused –
(a) prepared a trafficable quantity of a controlled substance for supply; or
(b) transported a trafficable quantity of a controlled substance; or
(c) guarded or concealed a trafficable quantity of a controlled substance; or
(d) [Section 12 Subsection (2) amended by No. 77 of 2005, s. 6, Applied:15 Dec 2005] possessed a trafficable quantity of a controlled substance; or
(e) [Section 12 Subsection (2) amended by No. 77 of 2005, s. 6, Applied:15 Dec 2005] imported a trafficable quantity of a controlled substance into Tasmania –
it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled substance required to constitute the offence.
(3) [Section 12 Subsection (3) omitted by No. 9 of 2004, s. 6, Applied:27 May 2004] . . . . . . . .
13 Procuring child to traffic in controlled substance
13 Procuring child to traffic in controlled substance
(1) A person must not procure a child to traffic in a controlled substance.
Penalty: Imprisonment for a term not exceeding 21 years.
(2) For the purposes of this section, a person is taken to have procured a child to traffic in a contr
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